State v. Earsery

• Decision Date: 10 June 1967
• Docket Number: No. 44704,44704
• Citation: 199 Kan. 208,428 P.2d 794
• Parties: The STATE of Kansas, Appellee, v. John D. EARSERY, Appellant.
• Court: Kansas Supreme Court

Page 794

428 P.2d 794

199 Kan. 208

The STATE of Kansas, Appellee, v. John D. EARSERY, Appellant.

No. 44704.

Supreme Court of Kansas.

June 10, 1967.

Syllabus by the Court

1. The judgment of a juror, in deliberating upon his verdict, in not to be subjected to oppressive statements or acts on the part of the trial court, but is to be exercised free from judicial pressure, harassment, constraint or compulsion.

2. The expense borne by the public incident to a jury trial is entirely extraneous to any issue before the jury.

3. It is only when error adversely affects some substantial right of a litigant that it can be said to constitute prejudicial error.

4. In determining whether coercive instructions or statements by the court amount to reversible error, consideration must be given to the circumstances under which they were made, and the probable impact of the same upon the jury must be weighed in the light of the surrounding conditions.

5. It is no part of the judicial function to invade the province of the jury by coercing the will or judgment of any juror.

6. It is the duty of the judge to guide the jury in its deliberations by giving proper instructions, but he must not abuse his office by coercing the jury into making a decision it might otherwise not have made. (Following State v. Basker, 198 Kan. 242, 424 P.2d 535.)

7. Whenever the statements or instructions of a court to the jury are plainly coercive, or tend to be so coercive as to be prejudicial, the duty of this court is to direct a new trial for abuse of discretion. (Following Coleman v. S. Patti Construction Co., 182 Kan. 53, 318 P.2d 1028.)

8. The record is examined and it is held that statements made by the trial court to the jury were of a coercive nature and constituted prejudicial error.

R. K. Hollingsworth, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief, for appellee.

M. William Syrios, Wichita, argued the cause and was on the brief, for appellant.

FONTRON, Justice.

The defendant, John D. Earsery, was convicted of first degree robbery and sentenced to a term in the state penitentiary. He has appealed from that judgment.

Five grounds of error are specified. We shall confine our discussion, however, to the specification dealing with the alleged coercion of the jury, which we believe is decisive of this appeal.

To silhouette the question properly, a chronological outline must be drawn. Trial of the lawsuit commenced on January 11, 1966, and continued all day. The jury received the case at 10:40 the next morning, January 12, and deliberated the balance of that day, during which time they sent three notes to the court:

'Sir: Is the statement of Mrs. Adamson that the defendant was the assailant in this case sufficient identification?'

'Your Honor: Some of the jury believe there is insufficient evidence for a conclusion in this case. What is our next step?'

'May we have a copy of the testimony? There are questions in the area of Mrs. Adamson's testimony concerning the choosing of the 'mug shot' of the defendant and her answers to State and Defense questions of whether she had seen the defendant prior to the commission of the crime.'

After the night recess the jury reassembled at 10:00 a. m. on January 13, at which time portions of Mrs. Adamson's testimony were read. The court then spoke thusly: 'All right. While you are out here, I would like to chat with you just a moment.' and proceeded to read the following instruction:

'This case has been exhaustively and carefully tried by both sides, and at considerable expense, and has been submitted to you for decision and verdict. Although under the law a verdict must be unanimous and should be based upon honest judgment, not mere acquiescence for the sake of expediency, it is still necessary that you examine the matters submitted to you with the proper regard for, and deference to, the opinion of each other. A proper regard for the judgment of each other should help you greatly in forming your own judgment.

'There is no reason to think that a jury better qualified than you would ever be chosen to try this case. Therefore, each of you should listen to the arguments of the others with an open-mindedness characteristic of a disposition to be convinced by them; and if you differ in your views of the evidence, you should all be led by such differences of opinion to scrutinize the evidence more closely and to re-examine more carefully the grounds of your opinion.

'You should, after all, decide the issues of fact which have been submitted to you. In conferring you should lay aside all mere pride of opinion and you should bear in mind that the jury room is no place for espousing and maintaining, is a spirit of controversy, either side of a cause. The aim to be kept in view is the truth as it appears from the evidence, which evidence you must consider with the instruction of the Court.

'You will again retire to your jury room and examine your differences in a spirit of fairness and candor and try to arrive at a verdict.'

After reading the foregoing written instruction, the court indulged in extemporaneous oral remarks substantially to this effect: that a great deal of expense has been borne by the state to assemble the trial; that the reporter has to be paid, the court has to be paid and the county attorney has to be paid; that defandant's financial position was such that he could not hire counsel at his own expense and the matter of paying court appointed counsel likewise should be considered; that 'We have to consider likewise the expense of each of you, the Jurors.'; that unless a verdict was reached the whole thing would have to be done all over again and the expenses which had mounted up to this point would have to be duplicated.

At the conclusion of the court's remarks, the jury retired at 10:20 a. m. to resume deliberations. Ten minutes later, at 10:30 a. m. a verdict of guilty was returned.

The defendant maintains that the court erred in giving the instruction above set out and in following that instruction with the remarks heretofore summarized; that the effect of the instruction and of the remarks was to coerce the jury and to prejudice his right to a fair trial; and that a new trial should be granted. We are in essential agreement with the defendant's position.

The subject of coercive or forcing instructions is not new in this jurisdiction. Numerous cases dealing with this issue are found among the decisions of this court, extending from the early cases of Pacific Railroad Company v. Nash, 7 Kan. 280 and State v. Bybee, 17 Kan. 462, to our most recent decision, State v. Basker, 198 Kan. 242, 424 P.2d 535.

We believe that no good purpose would be served by citing all of our many decisions which bear upon the question, for it is difficult, if not impossible, to find two cases which are precisely alike. Courts have been ingenious in designing their instructions and in formulating their remarks to the end that some differences, even though slight, will be found to exist in the phraseology or emphasis employed.

Instructions challenged as coercive have been approved by this court in some instances, disapproved in others. Some language has been held to be prejudicial, other language has not. Reversible error has been found in some cases, but not in others. Indeed, the adjudication of cases involving alleged coercion appears to have been largely on an ad hoc basis, although common to them all is the premise that the judgment of the individual juror is not to be subjected to the pressure of coercive or oppressive acts and statements on part of the court, but is to be exercised free from judicial threat, harassment, constraint or compulsion. (See cases digested in 5 Hatcher's Kansas Digest (Rev.Ed.) Trial, §§ 181, 285; 2 Hatcher's Kansas Digest (Rev.Ed.) Criminal Law, § 160.)

Turning to the instant action, it is noted that the written instruction given the jury follows verbatim that which was prepared by the Committee on Pattern Jury Instructions of the Kansas District Judge's Association, which appears as PIK 10.20. The pattern instruction, in turn, is fashioned largely after the so-called 'Allen' instruction, based on the holding in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.

In the recent case of State v. Oswald, 197 Kan. 251, 417 P.2d 261, we approved the giving of an identical instruction under the circumstances which obtained in that case. But the court issued this caveat:

'* * * However, as a word of caution, this instruction quite properly could have been given at the time of the original charge. If so given all questions with regard to the coercive effect of the same would be removed. The practice of lecturing a jury in a criminal case after it has reported a failure to agree is not to be commended and under circumstances differing from the present case might well be held coercive and erroneous...